It appears the Metropolitan Omaha Property Owners Association’s lawsuit against their code enforcement will settle favorably for the owners.

1,000 Omaha rental property owners filed a federal lawsuit in July 2013 alleging arbitrary and capricious enforcement of the city’s housing code. Speaking to a couple of the owners their complaints are similar to ours, including the city ignoring owner occupied properties in disrepair while enforcing stringently on rental homes.

From the Federal complaint:

The City of Omaha has not adopted any specific rules, regulations, or interpretations of its very broad and general housing code. Instead, the City of Omaha has unlawfully designated the ability to make, interpret, and enforce Omaha housing law (including through unconstitutional means) on a case-by-case basis solely upon the unfettered discretion of each of its code inspectors. The system has no uniformity, consistency, or standard operating procedure and has fostered gross abuses, hardship, and violations of Federal and State Constitutional rights upon Omaha property owners. There are no adequate safeguards or protections in place and Omaha property owners are left without an adequate remedy or meaningful judicial review under State law.

Update on Disparate Impact fight set for oral argument 1/21/2015 before the US Supreme Court in Texas Department of Housing and Community Affairs v. Inclusive Communities Project.

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1/6/2015

Symposium: The case for disparate impact under the Fair Housing Act

Joe Rich and Thomas Silverstein are attorneys at the Lawyers’ Committee for Civil Rights Under the Law, which filed an amicus brief in support of the respondent, Inclusive Communities Project.

“A decision from the Supreme Court upholding the use of the disparate impact standard to enforce the Act will preserve long-settled expectations and avoid upending decades of settled case law, an untenable outcome that would absolve actors who have known for decades that they are liable under the Act for actions with significant, unjustified disparate impact.

…

“The text of the FHA is likely to be the primary focus of the Court. On its face, the statutory language strongly supports the conclusion, uniformly accepted in the lower courts for nearly four decades, that the Act authorizes disparate impact claims.

“Even if the Court concludes that the text of the Act does not conclusively support recognition of disparate impact claims, the language is, at a minimum, ambiguous. Indeed, in the wake of decades of consistent judicial interpretation supporting the disparate impact standard, it is hard to imagine how the Court could conclude that the language of the Act is unambiguously limited to disparate treatment claims. The Court made clear in Chevron, U.S.A., Inc. v. NRDC, Inc., that when a statute “is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” The agency has the power to “fill any gap left, implicitly or explicitly by Congress.” Under Chevron, the Court ordinarily defers to an administering agency’s reasonable statutory interpretation, and Justice Antonin Scalia gave such deference to the EEOC’s interpretation of the ADEA in his concurring opinion in Smith.

“Texas agrees — it argued in the Fifth Circuit in this case that HUD’s interpretation of the FHA should be afforded Chevron deference, and it prevailed when that court adopted HUD’s three-part burden-shifting approach for disparate impact claims under the Act. It is more than a bit ironic that Texas, which was victorious in the Fifth Circuit and yet sought Supreme Court review, now abandons this position.

John Shoemaker is one of the nation’s leading attorneys in the defense of the rights of rental property owners , and subsequently the rights of low income residents who live in rented housing. He specifically addresses Milwaukee and its HUD Grant application in this letter. I share this with letter with his permission. It’s long, but if you intend to be part of low to moderate income housing you need to read this. — Tim Ballering

October 22, 2014

Tim:

I am following up to my recent emails to you about the legal challenges private low-income housing providers have made in Federal District Court in the Twin Cities since 2004.

We are in our 10th year of federal litigation against Twin Cities’ municipalities, with six federal (Minnesota District) lawsuits still active (four lawsuits vs. the City of St. Paul – 14 total housing providers as plaintiffs: the three Gallagher vs. Magner consolidated cases that were before the U.S. Supreme Court in 2011-12, now awaiting trial; and the McRath vs. St. Paul case in discovery; and two lawsuits recently filed vs. Minneapolis – two providers as plaintiffs: Folger vs Minneapolis, Court File 13-cv-3489; and Ellis vs. HUD and Minneapolis, Court File 14-cv-3045). Recently, the federal court allowed housing provider Folger’s Fair Housing disparate impact lawsuit against Minneapolis to move past a motion to dismiss and that case is now in discovery. There are approximately 200 properties directly involved in these matters but the outcome of the litigation will impact hundreds if not thousands of other low-income properties.

Outside of these federal lawsuits, we have rarely seen much organized opposition from private real estate investors in response to oppressive public sector housing policies and actions. This is so even though the local government policies negatively impact the return on investment and incentives to continue providing affordable housing offered by the private market, and negatively impact the availability of such housing at rental rates that are affordable at under 30% of area median income.

Municipalities benefit from this lack of organization among private low-income housing market participants by focusing police power and public resources against each investor one at a time, picking off good, honest, hard-working Americans through ever-increasingly high regulatory standards, confiscatory fees, assessments and fines, targeted enforcement actions, other regulatory burdens and outright illegal policies and conduct. Low-income citizens who seek safe, decent and sanitary housing in the inner-city communities from private providers, suffer as the public sector actions cause displacement and keep housing units offline for longer periods of time than would be the case if the private market was allowed to operate within traditional legal boundaries, without oppressive local government regulation and illegal policies and conduct.

Challenging these illegal public policies and actions through litigation is not the best option in many situations as the heavy burden of court costs, attorney’s fees and expert fees is barrier to most owners of low-income housing pursuing redress of injuries against local governments. Owners usually experience an extended period of forced reduction in rental income and related dramatic increase in expenses directly from oppressive, targeted government actions against them. In a marketplace where profit margins are thin, local governments tend to drain private investor’s resources through heavy every day regulatory costs, so by the time litigation may be an option to preserve the portfolio and lifetime of investment, financial resources to carry the battle to court may be few. Many owners have drained available financial resources by the time they decide they need assistance in their fight. Many owners simply choose to walk away from their investment as they have no remaining resources to fight for extended periods and are unable to retain legal counsel to preserve their rights and fight for change. Nevertheless, in certain instances, litigation would be the best option where fighting back to save a rental portfolio is deemed necessary, especially if damages are significant or the threat of losing everything is very real and present.

What if private housing providers organized on a national, regional and/or state level and pooled their resources and joined the cause? That might move the process of change forward, albeit slowly over an extended period of time. One strategy might be to pool resources of time, talent and money for not just litigation but also lobbying at the local and state levels to publicly voice opposition to harmful public housing and related policies and advocate for reasoned approaches that preserve property rights, liberties, affordable housing and investments. We might consider creating a national or regional group of interested and experienced leaders and counsel to roundtable on these issues, including litigation strategies and to examine possible formation of citizen-investor groups to focus on selected municipalities where the fight is particularly advantageous to our cause.

There are other options for real estate investors in the low-income housing market outside the Court process and normal city council hearing process to address these legitimate concerns.

Private housing providers are eligible to file Complaints with the United States Department of Housing and Urban Development (“HUD”). We have filed three Housing Discrimination Complaints for a total of 16 housing providers and other interested parties with HUD since November 2012. HUD has not been cooperative and has taken every opportunity to delay having to accept complaints and to investigate complaints by private housing providers against local municipalities. This obstructive behavior by HUD arises I believe from the political animal HUD truly is, especially where the local government leaders are of the same political party as those in the Administration in Washington.

We have started the process this year of bringing HUD into the federal litigation as an interested party under the theory that federal law requires HUD to monitor and take actions to curtail violations of federal law by local governments and their officials. HUD has a federal statutory duty to honestly monitor and hold accountable local governments that receive federal grant funds where complaints are presented to HUD of wrongdoing by those jurisdictions. Courts have held HUD liable for damages and injunctive relief where HUD has continued to fund local entities with knowledge of discriminatory policies at the local level. Minneapolis and HUD have notified us that they will be seeking dismissal of the most recent lawsuit in January 2015.

While it might not be a cure-all, I believe the private housing providers must speak up at the local government level during the federal grant funding process.

Milwaukee is a yearly recipient of federal grants, including a number of grants administered by HUD. Milwaukee is recognized as an “Entitlement Jurisdiction” for federal HUD funding purposes which means the City applies to and obtains the grants from HUD directly, versus through the State of Wisconsin. One major grant program is called the Community Development Block Grant program, “CDBG”. As a federal grant funded Entitlement Jurisdiction, Milwaukee must conduct an “analysis of impediments to fair housing choice” (“AI”), every 3-5 years, although HUD strongly recommends each City receiving CDBG funds review the “AI” every year. The official definition of an “AI” is found in HUD’s Fair Housing Planning Guide (“FHPG”), see attached and see http://www.hud.gov/offices/fheo/images/fhpg.pdf

The “AI” is a review of impediments to fair housing choice in the public and private sector. The AI involves:

A comprehensive review of a State or Entitlement jurisdiction’s laws, regulations, and administrative policies, procedures, and practices

An assessment of how those laws, etc. affect the location, availability, and accessibility of housing

An assessment of conditions, both public and private, affecting fair housing choice for all protected classes

An assessment of the availability of affordable, accessible housing in a range of unit sizes.

Any actions, omissions, or decisions taken because of race, color, religion, sex, disability, familial status, or national origin that restrict housing choices or the availability of housing choice

Any actions, omissions, or decisions that have this effect. (Note: This means, “Disparate impact”).

Policies, practices, or procedures that appear neutral on their face, but which operate to deny or adversely affect the availability of housing to persons because of race, ethnicity, disability, and families with children may constitute such impediments. (“Disparate impact”).

Have the effect of restricting housing opportunities on the basis of race, color, religion, sex, disability, familial status, or national origin. (“Disparate impact”).

HUD’s FHPG provides that Milwaukee must analyze the following subjects of City laws, policies and actions on how those laws, policies or actions affect housing choice for low income and protected class members:

4.3 AI SUBJECT AREAS

Public Sector

Local building, occupancy, and health and safety codes that may affect the availability of housing for minorities, families with children, and persons with disabilities, such information should be available through a review of local laws and ordinances relating to these subjects.

Public Sector – other actions –

Building codes

Local zoning laws and policies (e.g., minimum lot size requirements, dispersal requirements for housing facilities for persons with disabilities in single-family zones, and restrictions on the number of unrelated persons in dwellings based on size of unit or number of bedrooms)

Federal grant funding to Milwaukee, that includes CDBG, is processed under a Consolidated Planning process whereby: (1) every 5 years, a Consolidated Plan is prepared by Milwaukee with citizen participation and submitted to HUD showing the five year plan; and (2) every year during the five year period the City must provide HUD with an Action Plan and a CAPER (Consolidated Annual Performance and Evaluation Report). By providing detailed financial and beneficiary information in the CAPER, the City explains to HUD and the community how the City is carrying out its housing and community development strategies, projects, and activities.

Milwaukee is now near the end in the process of preparing its five year Consolidated Plan submission for 2015-2019 to HUD. Part of the required Con Plan process is Citizen Participation [footnote 1], where the City must hold hearings and provide access to Plan information and documentation for community members to review and submit oral and written comments about the City’s plans for using federal grant funds during the next 5 year period. See http://city.milwaukee.gov/NeighborhoodStabilizationProgramNSP/NSP-Meetings—Con-Plan.htm#.VEhAXBYzISg

Also note that Milwaukee is planning on acquiring more vacant homes including foreclosure properties.

We have discovered here in the Twin Cities, that Cities acquire claimed distressed properties (including those that the City acquired after targeting them) and then hold those properties off market for 3-5 or more years – until they have the money to develop them from federal or other sources and so as they claim, stabilize the real estate market in the inner city. Through use of a land bank concept, the properties are off-limits to the private market much like the “First Look” program whereby bank REO properties in the inner-city are offered first off-the-books to local governments and NGOs, thereby prohibiting private market acquisition. We learned of this policies through the Cities’ applications for federal Neighborhood Stabilization Program grants (NSP) funding from 2009 and thereafter.

Here in the Twin Cities, we have local government policies that interfere with the normal “ups and downs” of the real estate market and exacerbate the affordable housing crisis. These local government policies prohibit transfer of ownership of vacant homes without local government approval and require massive investment into claimed distressed homes before re-occupancy. These policies have directly led to an extended period of blight in the inner-city as the normal 300-400 annual vacant homes in St. Paul has continued for eight years at 4-8 times those levels, including above 2,000-2,400 for a number of years. These local government policies extend the high number of vacant homes for longer periods thereby allowing local governments to control the disposition, ownership and use of these homes.

The continuation of these policies year after year has negatively impacted property (sales) values of homes including older rental properties; however, the tax assessments are continuing at high valuation levels.

Combined City efforts of heavy, targeted code enforcement and high rates of demolitions with associated demo assessments, along with the high number of foreclosures and vacant homes, has led to a golden opportunity for local governments to acquire these claimed distressed properties. City acquisition of large numbers of claimed distressed properties and the policy of holding those properties offline from sale and redevelopment, along with the lack of production of significant numbers of new affordable rental units for those at under 30% AMI, has exacerbated the unavailability of affordable older housing to meet the high demand for rental housing.

Here, local government documents demonstrate that City officials are seeking to keep private investors from acquiring distressed properties; are placing deed restrictions on renovated homes prohibiting rentals; city policies are de-converting multi-unit rental buildings and homes to smaller number of allowed units – duplexes de-converted to single family homes, and 4-plexes to duplexes. There are thousands of vacant homes that could be quickly and economically repaired to reasonable housing standards and let out to those in need of rental housing. Instead local governments are requiring massive renovation investment to City-approved standards (including Green Energy) in order to re-occupy these homes.

Federal, state and foundational funding is insufficient to renovate the inner-city older housing stock yet the City will allocate federal funds to each project at levels many times above the amount the private market would or could justify. Government funding for the expensive renovation and subsidies for new owners, is actually wasted while claiming to develop and preserve affordable housing. A small portion of the overall Millions in grant and other government funds currently being committed yearly to the government and NGO renovation projects producing a small number of housing units, could be provided to the private market for repairs and commonsense renovations.

With the high demand for affordable rental housing units by poor, minority families, a reasoned argument can be made that available government funds should be spent first on policies that ensure there are enough affordable housing units for most of those in need with ability to pay. The private market has the time-tested solutions for issues related to timely production of safe, decent and sanitary rental units including renovated units to reasonable standards. Instead, local government policies are focused on prohibiting the private market solutions and producing expensive renovations to a limited number of homes in the large pool of vacant homes. Government policies like this in the short term only produce minimal numbers of available units and most of them for home-owners only. It also keeps thousands of low-income and minority families on the waiting lists for affordable housing.

Again, thank you for your interest in our fight for justice here in the Twin Cities.

I look forward to discussing these issues with you.

John

John R. Shoemaker

Attorney at Law

SHOEMAKER & SHOEMAKER, PLLC

Highland Bank Building

5270 West 84th Street

Suite 410

Bloomington, MN 55437

(952) 224-4610

P.S: In July 2013, HUD proposed a federal regulatory rule called, “Affirmatively Furthering Fair Housing” that has long been a federal funding requirement of all Entitlement Jurisdictions, including Milwaukee. Section 808(e)(5) of the Fair Housing Act (42 U.S.C. 3608(e)(5)) requires that HUD programs and activities be administered [including by grant recipients) in a manner affirmatively to further the policies of the Fair Housing Act.

The new AFFH rule replaces the “AI” process with a Fair Housing Assessment.

Over on the ApartmentAssoc Yahoo Group we had a discussion about the number of foreclosed properties Milwaukee has for sale and how the city limits sales to owner occupants. Orv Seymor replied:

You are missing the point, the city does not want any investors buying or rehabbing any of these properties.

They want control over the entire rental market in Milwaukee or they want to be able to say that they made these bldgs. available on the private market before they tore them down and built new housing with taxpayer dollars, which again, would give them control over the entire rental market in Milwaukee.

You see, they cannot stand to see anyone make a profit when they in the housing business

I believe the City’s motivation is more perverse than even Orv’s opinion.

Rather than trying to control the entire rental market and therein the profits as Orv suggests, I would argue these sales restrictions by the city are just another part of the process in which the City’s attempts to exclude the poor and racial minorities from Milwaukee.

Other tools in the City’s toolbox include excessive property tax assessments of lower valued neighborhoods, disparate code enforcement practices that ignores worse conditions at owner occupied housing, while excessive enforcement of even petty violations on rental housing occupied by poorer or racial minority tenants, as well as differential rules for owner occupied and rental housing.

Evidence of this argument? Look at sales of Milwaukee Eastside, Southwest Side and Bayview homes, cash or conventional financing, compared to their assessments. Then do the same with sales, cash or conventional financing, of properties in the 12th or 15th Aldermanic Districts. Those in the higher valued neighborhoods are selling at or above the assessment, while those in the lower valued neighborhoods are selling for often less than 35% of assessment. The effect is lower income occupants have a higher tax burden than more expensive homes as a percentage of their home’s value.

The next time you get an exterior order take a look around the block. Look up the neighboring properties that are in similar or worse condition on the City’s property information site. Most often you will see the owner occupied properties, and even those were the tenants more closely match the race of the neighbors, are ignored. You may, with a bunch of effort, even find the Alderman was behind the complaint. If the City truly thought this was legal, why do they fight so hard to hide the fact that city employees or officials were the complainant .

Then make a complaint to DNS on those adjoining properties and demand that DNS holds these adjoining properties to the same standard as they hold yours. If you are extremely persistent they may even write orders on the worst of those neighboring properties. Go back and review the records and the properties six months later. Often you will find the orders on those adjoining properties show on the City’s computer as being complied with, even though many of the violations remain. The disparity is so ingrained that when asked, the inspectors often justify their actions with social economical arguments that have nothing to do with codes or housing conditions.

On our properties I document these things with written complaints, screenshots of city records and, in aggregate, thousands of photos of our properties and those adjoining. I urge you to do the same. If you wish to share your documentation with me that would be great.

In part Milwaukee stole a page from the St Paul MN playbook, as evidenced by writings between our former Commissioner of DNS and his St Paul counterpart that were obtained by St Paul, MN landlords’ during discover in one of many federal cases St Paul landlords have filed against their city’s (alleged) discriminatory and disparate inspection practices. One St Paul case was accepted by the US Supreme Court only to have the Obama Administration pressure St Paul into dropping their bid for review by the SCOTUS on the eve of oral arguments.

A St Paul official expressed the view at a public hearing that if you ‘Get rid of the nest, you get rid of the vermin’ (Not at the office to grab the actual quote, but this is close) It seems like this too was a sentiment adopted by Milwaukee’s leadership and those sentiment have spread to surrounding communities. Make it impossible to provide housing for certain classes of people to live in your city and they all go away.

Disparate housing code enforcement, rules affecting only certain classes of properties, property tax assessment schemes that put greater burdens on poorer neighborhoods and restrictions on purchasing, all aimed at making it difficult or unreasonable for members of protected classes to live in a city is not proper use of police powers. Preventing these type of discriminatory policies is really the foundation of all Fair Housing laws.

If a city is to employee housing code enforcement and property tax assessment in a manner to drive out certain social economic groups, then those efforts should be funded by the kkk, not taxpayers.

Leading members of the U.S. House Committee on Oversight and Government Reform are pressuring St. Paul Mayor Chris Coleman to explain if the Obama administration played a large role in getting the city to withdraw a housing case scheduled to be argued before the U.S. Supreme Court on Feb. 29.

Disclaimer

I am "just a landlord," NOT an attorney or accountant. If you need legal advice, tax advice or have appendicitis, don’t rely on something you read on the internet and do it yourself. Rather, hire a competent professional.